2018-687-E BOCC - Granicus Service contract

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DocuSign Envelope ID:7CF26EB6-C8A1-4FA5-BB42-042EFBC099BD liability, choice of law and jurisdiction, and confidentiality shall survive termination of this Agreement and continue in full force and effect. S. Limitation of Liability 8.1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES.UNDER NO CIRCUMSTANCES SHALL GRANICUS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL,OR CONSEQUENTIAL DAMAGES,WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,GRANICUS SHALL NOT BE LIABLE FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA; (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS,SERVICES OR TECHNOLOGY;(C)LOSS OF BUSINESS;(D)DAMAGES ARISING OUT OF ACCESS TO OR INABILITY TO ACCESS THE SERVICES,SOFTWARE,CONTENT,OR RELATED TECHNICAL SUPPORT; OR (E) FOR ANY MATTER BEYOND GRANICUS' REASONABLE CONTROL, EVEN IF GRANICUS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING LOSSES OR DAMAGES. 8.2. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER'S BREACH OF SECTION 3.3, IN NO INSTANCE SHALL EITHER PARTY'S LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR OTHERWISE) EXCEED THE FEES PAID BY CUSTOMER FOR THE GRANICUS PRODUCTS AND SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DIRECT DAMAGES.GRANICUS SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES,HOWEVER CAUSED.NEITHER PARTY MAY INSTITUTE AN ACTION IN ANY FORM ARISING OUT OF NOR IN CONNECTION WITH THIS AGREEMENT MORE THAN TWO(2)YEARS AFTER THE CAUSE OF ACTION HAS ARISEN.THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE. 9. Indemnification 9.1. Indemnification by Granicus. Granicus will defend Customer from and against all losses, liabilities,damages and expenses arising from any claim or suit by a third party unaffiliated with either Party to this Agreement ("Claims") and shall pay all losses, damages, liabilities, settlements,judgments, awards, interest,civil penalties,and reasonable expenses (collectively, "Losses,"and including reasonable attorneys'fees and court costs),to the extent arising out of any Claims by any third party that Granicus Products and Services infringe a valid U.S.copyright or U.S. patent issued as of the date of the applicable Exhibit. In the event of such a Claim, if Granicus determines that an affected Order or Exhibit is likely,or if the solution is determined in a final, non-appealable judgment by a court of competent jurisdiction, to infringe a valid U.S. copyright or U.S. patent issued as of the date of Exhibit A, Granicus will, in its discretion: (a) replace the affected Granicus Products and Services; (b) modify the affected Granicus Products and Services to render it non-infringing;or(c)terminate this Agreement or Exhibit A with respect to the affected solution and refund to Customer any prepaid fees for the then-remaining or unexpired portion of Exhibit A term. Notwithstanding the foregoing, Granicus shall have no obligation to indemnify, defend, or hold Customer harmless from any Claim to the extent it is based upon: (i) a modification to any solution by Customer (or by anyone under Customer's direction or control or using logins or passwords assigned to Customer);(ii)a modification made by Granicus pursuant to Customer's required instructions or specifications or in reliance on materials or information provided by Customer;or(iii)Customer's use(or use by anyone under Customer's direction or control or using logins or passwords assigned to Customer) of any 6